The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-03-15

BEFORE JUDD c. j., MCULLY, PRESTON AN
BICKERToN, ]. J. FoRNANDER, j., ABSENT.
h. Ackerman, master of American schoone
! Geo. G. Perkins VS.. j. II. Congdon.
re H. M. Whitney and A. L. Atkinson fo
contempt of Court.
OPINION OF THE COURT BY JUDD, G. J.
At the instance of one ]. H. Congdon, dc
| fendant in a case then pending in the Su
preme Court, wherein H. Ackerman, maste
of the American schooner Geo. G. Perkins
was plaintiff, the Court issued a rule citin
| the respondents, II. NJ. Whitney and a. I
Atkinson, as publisher and editor respec
lively of the HAWAIIAN GAZETTE newspaper
to appear and show cause why they shoulC
not be adiudged guilty of a contempt o
Court in having printed and published il
the said newspaper, in its issue of Decembe
%, 1856, the following article;
1.-THE OTHER SIDE OF THE QUESTION.
"The circumstances attending the arres
of Mr.. j. H. Congdon, of San Francisco
while about to leave for that city on Wednes
day last by the steamer Australia, are as
follows: On October 18th the bark Geo. G.
Perkins arrived here, consigned to the house
of F. A. Schaefer & Co. of this city, and on
her manifest appeared 250 hogs, shipped on
deck by J. H. Congdon, in which the ship
assumed no responsibility. 1t appears that
some forty of the porkers died on the passage
down, while 210 we're delivered to the owner
alive. So far as the ship is concerned, no
accident occurred to cause death, and the
only excuse was that the hogs were over-fed
and died from suffocation.
The hogs were cared for by the owner,
and were consigned to order on the mani
fest. An order to Messrs. Schaefer d Co.
was received to collect the freight money,
$3.50 62, the full amount on $50 hogs land in
serted across the face of the bill of lading,
in red ink, we're the words, payable in full,
dead or alive') which was not paid at the
time of delivery of the hogs to order here.
Congdon refused to pay freight until the
ship had paid for the forty dead hogs, which
the agents would not agree to. Meantime
Congdon returned to San Francisco, without
comforting with Messrs. +. A. Schaefer d
Co., or stating that McChesney & Son were
his agents-in point of fact the agents of the
Geo. G. Perkins had no knowledge of Nc
Chesney & Son in the matter. Messrs. F. A..
Schaefer & Co., entered suit in the Supreme
Court for the recovery of the freight money
on said hogs. On Sunday last j. II. Cong
don returned to Honolulu on the Lark Ella,
and on Monday morning the necessary
papers were served on Congdon by Officer
FeElber to appear before the Court and de-
fend himself. On Wednesday it was rumored
that Congdon was going to return to San
Francisco by the Australia, when bench
warrant was issued for his arrest by Judge
McCully OF the Supreme Court. The warrant
was served about fifteen minutes before the
steamer left the port, and Congdon only ar
rived on board five minutes before the serv-
ing of the warrant. Congdon's name was
not on the list of passengers, and having
been less than the required thirty days, did
not need passport to leave the Islands.
When arrested he stated that McChesney &
son were his agents, and would make mat
ters all right. Had he filed a bond with
sureties, Congdon would have been allowed
to depart Messrs. T. 3. Schaefer d. Co.,
the agents, were compelled to pursue this
course in order to save themselves for the
loss of the freight money, for which the firm
was virtually responsible to the owners of
the Perkins in San Francisco, and merely
carried out their written instructions. Had
MIR. Congdon taken the necessary steps to
have himself represented by responsible par
ties, or filed proper bond, he would have
saved himself great deal of trouble and an
noyance, and could have left when he
pleased. 1t is best to be Square,
"On Thursday a writ of habeas corpus was
sued out by j. H. Congdon's counsel, and
was argued before his Honor the Chief JUS
tice, who on Friday rendered decision ad-
verse to the writ, and remanding Congdon
into the custody of the Marshal. Counsel
for the defendant noted an appeal TO the
full court in banco. So the end is.not yet"
The rule was returned on the 9Th January,
1887. The affidavit of the applicant for the
rule alleged "that the material statements
in the article so published were false: that
they reflect injuriously upon the petitioner,
and are calculated to cast unjust suspicious
of dishonesty upon his character, and to pre-
judice the public with respect to the merits
of said case, and to prejudice and impair his
right to Just and impartial decision of said
case so pending as aforesaid by and on the
part of the jury therein, and to impede, en-
barrass and obstruct the course of justice
therein"
Al the hearing the respondents, who were
not represented by counsel, admitted the
publication of the article, the material for
which had been collected from, as they be-
lieved, reliable sources. They disavowed any
intention to commit a contempt of Court,
and submitted to the judgment of the Court
whether the publication of the article could
be so construed.
c. w. Ashford for petitioner.
The plain effect of the article is to preiu-
dice the minds of the public unfavorably to
the petitioner and his case now pending.
The publication is therefore punishable as
j contempt.
By the Court
The questions involved in this matter are
Of such wide Importance to the newspaper
press in general and to the public at large,
that we deem it necessary to discuss them at
some length.
The statute laws of this Kingdom in re-
spect to contempts are Sections Is, 19 and 20
IF Chapter % of the Penal Code (1S69), and
.he 24th Chapter of the Civil Code, being
Sections 1896, 1887 and 1898 thereon (com-
piled Laws, PIP. 31S-319). The Penal Code
Section is, Chapter 29) reads: whoever,
after trial by jury, is adjudged guilty of con-
Tempt of any Judicial Court, whether by open
resistance to the process or proceedings
thereof" etc. cor by publishing
OF the eUideHce or prOceedings
b a pending trial, tending to prejudice the
public respecting the same, and to Obstruct
ind prevent the administration of justice; or
1y knowingly publishing an unfair report Of
he proceedings of Court, or malicious in
7ectives against Court or jury tending to
1ring such Court or jury or the administra-
ion of justice into ridicule, contempt, dis
credit or odium, shall be punished" etc.
1t is suggested that the article in question
ioes not come under any of the above defin-
tions of contempt, as above italicized for
1t is clear that it does not.
The article is not an animadversion on the
evidence or proceedings IN pending trial